A blog for reason and logic.
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Wednesday, August 28, 2013

Politics VI: The Constitution

The administrative mechanisms as well as every law of a country are based on its constitution. It is the constitution that gives authority to the government and to the laws and decrees that regulate the state affairs.

But where does the constitution derive its authority from?

According to the modern understanding of a state, which is based on the philosophy of the Age of Enlightenment (especially Jean-Jacques Rousseau), the constitution of a state is a social contract that its citizens have agreed to. This means, a constitution is only legitimate, if it is based on the voluntary agreement of the citizens.

In our modern democracies, this agreement is formally done by a majority vote of the citizens who either approve or reject a draft of a constitution. If the constitution gets the majority vote, it is considered to be legitimate and binding for all citizens and all branches of the public administration and the government.

However this is not how a contract works. A contract is only valid, when it is signed by all involved parties, not just by the majority of them. And it is only binding for those who signed it.

Or would a contract be valid if a group of people signs it in order to justify a hostile action against some other people or to make regulations for people who have not agreed to the contract? Of course this would not be possible, not even if the group who signed the contract is more numerous than the other group that it is applied to against their will. Such a document would not be a contract, rather it would be a conspiracy.

For this reason the constitution of a state cannot be subject to a majority decision. It requires the consent of every single person that it is supposed to be applied to. A constitution cannot have any authority over any human being who has not personally signed it showing his consent. Otherwise it is not a constitution but a conspiracy pact.

It might be objected that it is impractical to try to get the signatures of every citizen under the constitution, but this is how a contract works. If you don't have the signature of all involved parties, the contract is void. If it is not possible to get the signatures of every single citizen of a state, then the terms of the contract, i.e. the constitution, have either to be changed or the reach of its authority needs to be limited into smaller units. If it is not possible to get the signature of several million citizens, then probably the political entity is too big and needs to be divided into smaller units (e.g city states), which are able to agree to an unanimous consensus among them.

A very important principle of a constitution is that it must be limited to the smallest common denominator. Therefore it cannot have too many terms, since it would be impossible to reach a consensus over them.

Second, a constitution must not include any controversial issues. We know that topics like abortion, family laws or religious references are controversial. So there is no place for them in a constitution.

It needs also to be considered that future generations of citizens must be willing to sign the constitution, so it needs to be free from temporary political trends.

A constitution is only valid, when every citizen has signed it and it is only applicable on the citizens who have signed it. Therefore it has to consider what to do with people who refuse to sign it. And even if a consensus is reached among all citizens at the moment, it is possible that people reaching adulthood and citizenship in the future might not be willing to sign it.

A person who has not signed the constitution is not subject to its regulations. This will have certain disadvantages, because the person will not have the protection of its laws, but nobody can be forced to give his consent and nobody can be forced to fall under the authority of a law whose legitimacy he has not agreed to.

A state, which is based on such a constitution, has to leave these people in peace. It has no authority over them. It cannot force them to anything, but it also has no obligations towards them.

However it is in the interest of a state to make the terms of its constitution as agreeable as possible for everyone in order to avoid that too many people refuse to give their approval to its constitution and therefore to its legitimacy.

Since these requirements of a legitimate constitution are not fulfilled by any modern state, no existing country has a legitimate constitution and any legitimate authority.We need a radical change of the political system and the understanding of what constitutes a state. All authority is derived from the citizens. And without their signature and consent to the constitution, the state has no legitimate authority over them. The state has to respect its citizens, not only their majority, but every single one of them.

Every human being is free to agree to the authority of the state or to reject it. No government institution can claim authority over a human being from any other source than this particular human being himself.

The age when state authority was derived from divine mercy or some kind of profane substitute of it (e.g. the "will of the people", the "common good", the "national security", the "proletariat" etc.) needs to be over once and for all.